Arbitration

You may request the CCMA to resolve the dispute by arbitration. At an arbitration hearing both parties would be given the opportunity to fully state their side of cases where the commissioner would issue an award which is legally binding on both parties.

According to s136 (1) (b), a party must request the commission to arbitrate a dispute within 90 days from the date on which the commission has issued the certificate that the dispute has not been resolved.

Rule 25 of the CCMA Rules provides that in an arbitration hearing a party may appear in person or be represented by a legal practitioner, a director or fellow employee, office- bearer or official of the party’s registered trade union or registered employer’s organisation. However, if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, legal representation is not automatic. Legal practitioners are only allowed in the proceedings unless:

The commissioner and all other parties consent; or

The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representative.

Section 145 of the LRA states that any party to the dispute who alleges a defect in any arbitration proceedings may apply to the Labour Court within six weeks for an order setting aside the award. The Labour Court may stay the enforcement of the award pending its decision.

If the dispute is one in which Con/Arb is not compulsory, any party to the dispute may object to the process by giving notice to the CCMA and the other party, at least 7 days prior to the scheduled date (Rule 17). Parties have no legal obligation to provide reasons for the objection.

Con/Arb promotes the principle of speedy resolution of disputes in that the matter is finalised in one day. It is cheaper than the separate Conciliation and Arbitration process, with regards to costs that may be incurred by the parties.

According to Rule 17 (6) in a Con/Arb process a party may be represented by a legal practitioner; a director or employee of that party or a trade union official. If the dispute concerns an alleged unfair dismissal relating to conduct or capacity, legal representation is not automatic (Rule 17 (7)

If there is an objection to Con/Arb and the matter remains unresolved, a certificate of non-resolution will be issued. The applicant must then apply for arbitration. This fact was confirmed in the leading case of Ceramic Industries Ltd v CCMA & Another (2005) 12 BLLR 1235 (LC), where it was held that if a party objects to Con/Arb the whole process is then switched to the old regime.

According to Rule 17 (6) in a Con/Arb process a party may be represented by a legal practitioner; a director or employee of that party or a trade union official. If the dispute concerns an alleged unfair dismissal relating to conduct or capacity, legal representation is not automatic (Rule 17 (7)

Regulation 2 of the conduct of facilitations in terms of section 189A provides that the Commission must notify the parties in writing no later than seven days of receiving the LRA 7.20 form. The following should be included in the notification:

The name of the facilitator; and
After consulting the parties, the date of the first facilitation meeting.

There are no fees regulated as yet, however, subsection 6 (c) of section 189A stipulates that the Minister may, after consulting with the Commission and NEDLAC make regulation relating to the circumstances in which the Commission may charge for appointing the facilitator.

According to section 189A (7) (b) if a facilitator is appointed and 60 days have elapsed from the date on which the notice was given, a registered trade union or the employees who have received the notice for dismissal may either:

I. Give the notice of a strike in terms of section 64 (1) (b) or (d), or
II. Refer a dispute the fairness of a dismissal to the Labour Court.

It is a preliminary hearing on a specific legal point relating to jurisdiction prior to getting into the merits of the case. Some of the preliminary issues are so important that the determination of the point will dictate whether the dispute referred proceeds or falls away. Condonation, joinder and substitution are some of the preliminary issues that may be raised.

There are various time frames to refer a dispute to the CCMA. For instance, an employee must refer a dismissal dispute within 30 days of the dismissal. For unfair labour practices it is 90 days. Should a party refer a dispute outside the required time frame, it should ask the CCMA to condone its late referral. This condonation application must be supported by an affidavit and address aspects such as the degree of lateness, the reason(s) for the delay, prospects of success and prejudice to both parties. The CCMA can deal with the application on papers or ask parties to come and argue their case in a condonation hearing.

There are no promulgated forms, however, CCMA rule 9 (4) indicates that the CCMA may assist a referring party when making an application. Standard application forms have been put together by the CCMA in this regard.

There are no promulgated forms but the CCMA has put together a standard application form. The application must be supported by an affidavit, a copy of which must be send to the other party and to the CCMA with proof of service.